Chair in Public International Law, European Law and Public Law

Professor Bardo Fassbender

New OUP book on "The Limits of Human Rights"

Together with his colleague Prof. Knut Traisbach (University of Barcelona), Prof. Bardo Fassbender edited the volume "The Limits of Human Rights". The book was published in December 2019 by Oxford University Press and is available both in hardback and paperback, and also as an Ebook. The editors and twenty-six authors try to identify, conceptualise and analyse contemporary "limits of human rights", for instance inherent, functional, pragmatic, or ideological limits. The authors use different disciplinary understandings from anthropology, history, international relations theory, law, legal and political theory, philosophy, and (political) sociology, as well as different professional perspectives from advocacy and legal practice. The book thus wants to make an original contribution to the present academic debate on the importance of human rights, without denying that importance or deconstructing the idea of human rights. Each contribution is supplemented by an engaging comment which furthers this important discussion. This combination of perspectives paves the way for further thought for scholars, practitioners, students, and the wider public. The volume seeks to provide a rich spectrum of viewpoints and arguments across disciplines to offer fresh insights into human rights and its limitations. Among the renowned authors of the volume, we find Hilary Charlesworth (Melbourne Law School), Christine Chinkin (London School of Economics), Andrew Clapham (Graduate Institute of International and Development Studies, Geneva), Mireille Delmas-Marty (Collège de France, Paris), David Dyzenhaus (University of Toronto), Conor Gearty (London School of Economics), Lynn Hunt (University of California in Los Angeles), Douglas A. Johnson (Harvard Kennedy School), Jan Klabbers (University of Helsinki), Martha C. Nussbaum (University of Chicago), Jeremy Perelman (Sciences Po Paris), Yuval Shany (Hebrew University Jerusalem), Kathryn Sikkink (Harvard Kennedy School), and Henry J. Steiner (Harvard Law School).

Andreas Zimmermann & Christian J. Tams (eds.), The Statute of the International Court of Justice: A Commentary. Third Edition. Oxford University Press, 2019

The leading commentary on the Statute of the International Court of Justice (ICJ) in The Hague was published in a new, third edition, edited by Professor Andreas Zimmermann (University of Potsdam) and Professor Christian J. Tams (University of Glasgow) in collaboration with Dr. Karin Oellers-Frahm (Max Planck Institute of Public International Law Heidelberg) and Professor Christian Tomuschat (Humboldt University Berlin). The first edition of this comprehensive commentary on the legal framework of the work of the principal legal organ of the United Nations came out in 2006, the second revised edition in 2012. Seven years later, another thorough update and revision had become necessary. The work includes detailed explanations of all seventy articles of the ICJ Statute, as well as of the articles of the United Nations Charter which address the Court. Further, a “General Introduction” and a “Historical Introduction”, placed at the beginning of the commentary, offer the reader an analysis of the development and context of the judicial work of the ICJ since its establishment in 1945. As the editors write in the Preface, “[the] third edition is true to the aims of the first and the second. It is meant to serve as a guide to the daily work of the United Nations’ principal judicial organ, offering context, background, critical analysis, and assessment. By analysing the legal regime governing proceedings before the Court, the Commentary seeks to facilitate the work of practitioners and scholars working in, at, or on the ICJ.”

Professor Fassbender contributed to the work commentaries on six articles, namely Articles 9, 10, 11, 12, 54 and 55 of the Statute. The most extensive of those commentaries (on Article 9) relates to the election of the ICJ judges who, as a whole, shall represent “the main forms of civilization” and “the principal legal systems of the world”. Articles 10, 11 and 12 address the procedure of the election of ICJ judges by the UN General Assembly and the UN Security Council, while Articles 54 and 55 include rules about the deliberations of the Court after the closure of the oral hearing, about the secrecy of the Court’s deliberations, and the majorities by which the Court makes its decisions.

The status and role of the “sovereign state” in the universal legal order

In a new article, published in the “International Journal of Constitutional Law” (ICON) (The state’s unabandoned claim to be the center of the legal universe, in: ICON vol. 16 (2018), pp. 1207-14), Professor Fassbender examines the status and role of the “sovereign state” in the contemporary universal legal order, and presents reasons accounting for the fact that the state could maintain its central place in the “legal universe”, in spite of many academic and political efforts to relativize that position.

Abstract: Since the period following World War I, the science of international law has endeavored to “relativize” the importance and role of the “sovereign state” in international law, understanding the state as a partial legal order in the framework of a universal legal order. However, until today positive international law hardly reflects that transformation. Instead, it has perpetuated the centrality of the sovereign state in the world of law. The present article points to a number of features concerning the legal relationships between that state and other legal communities, both subnational and supranational, in which the continued central role of the state is manifesting itself. The article concludes by reflecting on possible reasons accounting for the center stage still assumed by the sovereign state, in spite of developments like the expansion of the scope of international law or the growth of international institutions.

The ”rule of law” and the United Nations Charter

The “Chinese Journal of International Law” has published a new article written by Professor Fassbender (What’s in a Name? The International Rule of Law and the United Nations Charter, in: Chinese Journal of International Law, vol. 17 (2018), pp. 761-97) which analyses the correlations between the contemporary concept of an “international rule of law” and the Charter of the United Nations as adopted in 1945 and developed in the work of the principal organs of the UN, in particular the General Assembly and the Security Council.

Abstract: In the past twenty years or so, the concept of the rule of law, cherished for centuries as a constitutional principle in a domestic legal context, has attracted much attention from international lawyers and international organizations. In particular, the United Nations has devoted substantial effort and time to studying and defining the international dimension of the concept, to concretizing specific legal consequences, and to applying the concept to its own mandate and work, especially in the area of the maintenance of international peace and security. Against this background, the present article enquires into the relationship between the concept of an international rule of law as advanced by the United Nations and the UN Charter. To what extent can the concept be said to be inherent in the Charter, although the term itself does not appear in its text? Comparing the original design of the Charter with the rule of law as developed by the UN, the article observes a progressive expansion of the concept in several dimensions, but at the same time its persistent vagueness.

ICC Moot Court Competition 2017-18

As in the previous years, a team of the University of St. Gallen successfully participated in the ICC Moot Court Competition in The Hague, The Netherlands. Once again, student teams from law schools around the world (this year, 65 in total) were challenged to argue a fictitious case according to the rules of the International Criminal Court (ICC). You can find more information about the course of this year's competition in the following report of the St. Gallen team:ICC Moot Court Competition 2018 report

International Constitutional Law: Written or Unwritten?

In a new article published in the Chinese Journal of International Law, Prof. Fassbender analyses the question of whether there exists an “unwritten” constitution of the international community.

Abstract: Today, concepts of constitutionalism are widely used in international legal scholarship, both to describe and to promote changes in the international legal order in support of the rule of law, the protection of human rights and other common values of the international community. Against this background, the present article deals with a question so far addressed only cursorily—the “writtenness” of international constitutional law. Can we assume the existence of an “unwritten” international constitution, or does the very concept of a constitution in the modern sense require that a constitution is laid down in written form? The article discusses the importance of “writtenness” in modern constitutionalism and addresses the “English exception”, that is the absence, in the United Kingdom, of a document called “the constitution”. The paper concludes with a plea for taking the constitutional character of the UN Charter more seriously, arguing that the idea of an unwritten constitution of the international community does not provide a viable alternative.

International Conference on issues of the UN Security Council in Ascona, May 2016

Following an invitation by the Chair in International Law and European Law of the University of St. Gallen, an international group of academics gathered from May 22nd to May 25th, 2016, at Monte Verità in Ascona, Switzerland, with the aim of critically taking stock of, and further developing, the debates of the last twenty years regarding the work and a possible reform of the United Nations Security Council. Among the speakers of the conference were Professors Antony Anghie (University of Utah), Christine Chinkin (LSE), David Kennedy (Harvard Law School), Jan Klabbers (University of Helsinki), Anne Orford (University of Melbourne), Daniel Thürer (Zürich) and Neil Walker (Edinburgh).